Local enforcement of immigration laws at issue in Allentown man's appeal.

November 12, 2012|By Peter Hall, Of The Morning Call
An Allentown man wrongly jailed as an undocumented immigrant settled his civil rights lawsuit for $50,000, but an appeal in his case will put a question about local enforcement of immigration laws before a federal appeals court for the first time.

Ernesto Galarza reached a $25,000 settlement Oct. 12 on claims that Allentown police Detective Christie Correa reported him to Immigration and Customs Enforcement as an undocumented immigrant simply because he appeared to be Hispanic, according to court documents obtained by The Morning Call through a request under Pennsylvania's Right-to-Know Law.

In August, Galarza settled his claim against an ICE officer, also for $25,000, that the officer would have seen that Galarza is a citizen if he had checked the Social Security number Galarza provided.

Galarza's attorneys are now appealing a federal judge's decision that let Lehigh County, where he was jailed for nearly four days in 2008, out of the case at an early stage.

U.S. District Judge James Knoll Gardner in March found that Lehigh County Prison's policy of holding people ordered detained by ICE is nondiscriminatory and mandated by federal regulations.

Gardner wrote that U.S. Department of Homeland Security regulations dictate that local law enforcement agencies must hold people named in immigration detainers for up to 48 hours, excluding Saturdays and Sundays, to allow federal agents to research their immigration status.

But attorneys for the American Civil Liberties Union say Gardner misinterpreted the detainer regulations as mandatory. They say the immigration "detainers" lack the legal authority of an arrest warrant, for example, because they are not issued by judges.

"An immigration detainer is not a court order. It just says, 'We're investigating this guy, could you hold him please?' " said Mary Catherine Roper, of the ACLU of Pennsylvania. "We think Lehigh County, because it honored the immigration detainer, is equally responsible for keeping Mr. Galarza in jail for three days he shouldn't have spent in jail."

Attorney Thomas Caffery, who represents Lehigh County in the case, said the ACLU wrongly asserts that county jailers have a responsibility to investigate a person's immigration status. The appeal is the first time a federal appeals court has examined the issue, Caffery said.

Galarza was arrested Nov. 19, 2008, after Detective Correa said she bought cocaine from Galarza's co-worker at an Allentown construction site. Galarza and three other men were charged with conspiracy to distribute cocaine and taken to Lehigh County Prison. Galarza was later acquitted.

Although Galarza gave his place of birth as Perth Amboy, N.J., and had his Pennsylvania driver's license, bank card, health insurance card and Social Security card in his wallet, Correa told ICE agents that she believed all four men had provided false information about their identities and were foreign nationals, court papers say.

Based on the information Correa provided, ICE agent Mark Szalczyk sent a detainer to Lehigh County Prison instructing officials not to release Galarza, even though he had posted bail on the drug charge.

As a result, court papers say, Galarza was held in Lehigh County Prison from Friday, Nov. 21, 2008, until the following Monday, Nov. 24, when he was interviewed by ICE agents and released after again providing his Social Security number and date of birth.

Galarza sued ICE agents Mark Szalczyk and Greg Marino, Correa, the city of Allentown and Lehigh County, alleging he was wrongly held in prison because he was arrested in the company of three other men who did not appear to be U.S. citizens.

Kate Desormeau, an attorney with the ACLU's Immigrants' Rights Project in San Francisco, said the number of citizens wrongly jailed on immigration detainers is on the rise with increased cooperation between ICE and local law enforcement.

"The cases where an individual files a lawsuit are the visible ones, but this is happening in cases where no one files a lawsuit," Desormeau said.

One study of U.S. immigration policy shows the number of people being detained for immigration violations has increased four-fold since 1996.

A recently established ICE program called Secure Communities (that enlists local law enforcement to enforce federal immigration laws) resulted in about 3,600 U.S. citizens being wrongly detained, the study by the Warren Institute on Law and Social Policy estimated.

Desormeau also noted that Galarza's lawsuit was settled for a considerable amount considering the relatively brief period of detention. Another case in which a naturalized citizen from Philadelphia was held for seven months settled recently for $49,500.

A spokesman for ICE said the agency has established new procedures to ensure people being held by local or state law enforcement on immigration detainers are properly notified of their rights and that they face deportation.

ICE has also issued new detainer forms that explain in several languages why the person is being held and list a hotline telephone number people can call if they believe they're being held improperly.